In re Morrill House, LLC
35 A.3d 148
Vt.2011Background
- Applicants Howard Smith and Morrill House, LLC seek a variance to subdivide property in Pair Haven, Vermont, and argue the board’s failure to timely notify/issue decision warrants deemed approval; the Town denied the subdivision at the zoning administrator level for setback and minimum-lot-width issues; the Board of Adjustment held a hearing on November 9, 2009 and reportedly denied the request; a decision was drafted January 11, 2010 and signed January 15, 2010, 67 days after the hearing; the environmental court granted the Town summary judgment, rejecting deemed-approval; the Vermont Supreme Court affirms, applying statutory/ordinance standards and case law on deemed approval; ordinances here mirrored 24 V.S.A. § 4464(b)(1) and related subsections; the decision involved whether notice timing could trigger deemed approval and whether the board acted within the statutory deadline.
- Procedural posture involved cross-motions for summary judgment, with the environmental court and the Supreme Court addressing whether deemed approval applied given late notification rather than indecision or protracted deliberation.
- The court analyzes whether the board’s timely decision within the 45-day period with delayed notification falls within the narrow deemed-approval remedy, and ultimately concludes the remedy does not apply when the decision was made within the period, albeit with late notice.
- The court reviews Hinsdale, Leo’s Motors, Griffin, and McEwing to determine that the deemed-approval remedy is limited to cases of delayed indecision or failure to render within the deadline, and is inapplicable where a decision was made within the prescribed period even if written/notified late.
- The ordinances in effect at the time have since been repealed, but the statutory framework and case law continue to govern the outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deemed approval applies when a board renders a decision within the deadline but not timely notifying the applicant. | Smith argues late/absent notification warrants deemed approval. | Town asserts no deemed approval since the decision was made within 45 days. | Deemed approval does not apply; timely decision within period controls. |
| Whether disputed facts about notice timing preclude summary judgment. | There are disputes about oral notice timing. | Affidavits show the decision within the period; no genuine dispute. | No material dispute precludes summary judgment; timing of notice does not trigger deemed approval. |
| Whether plaintiffs preserved substantive variance merits issues for review. | Appellants intended to challenge merits but framed issues as notice-based. | Merits were not properly raised; preserved issues fail. | Substantive merits issues not preserved; only deemed-approval issue reviewed. |
Key Cases Cited
- Hinsdale v. Village of Essex Junction, 153 Vt. 618 (1990) (deemed approval limited to timeliness of decision and notice timing; notice is not always fatal)
- Leo’s Motors, Inc. v. Town of Manchester, 158 Vt. 561 (1992) (late notice after deadline does not trigger deemed approval when decision made within period)
- In re Griffin, 2006 VT 75 (2006) (deemed-approval inapplicable where decision made within period despite late notice)
- In re McEwing Services LLC, 2004 VT 53 (2004) (untimely decision due to protracted deliberations can justify deemed approval)
- In re White, 155 Vt. 612 (1990) (deemed-approval not defeated by lack of written notice if decision timely rendered)
- In re Ashline, 2003 VT 30 (2003) (discussed as context for deemed-approval purpose and limits)